UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses UPL, MDP AND MJP (DEFINING WHAT LAWYERS DO AND WHERE THEY CAN DO IT): PART II Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2019 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 35951124_10 UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses TABLE OF CONTENTS Hypo No. Subject Page Multijurisdictional Practice -- Governmental Authority and Consequences 1 Governmental Authority to Regulate Lawyers ......................................... 1 2 Jurisdiction Over Out-of-State Lawyers ................................................... 12 3 Status of Pleadings Signed by Out-of-State Lawyers ............................. 16 4 Out-of State Lawyers' Ability to Collect Fees ........................................... 23 Lawyers "Practicing" in Another State Where They Are Not Physically Present 5 Providing Advice about Another State's Law .......................................... 32 6 Establishing a "Virtual" Presence in Another State ................................ 41 Temporary Practice in Another State: Litigators 7 Pro Hac Admission in Another State's Court ........................................... 75 8 Involvement in Pre-Litigation Activities .................................................... 104 9 Involvement in Discovery .......................................................................... 121 10 Participation in Non-Court Proceedings ................................................... 126 11 Lawyers Representing Their Clients in Arbitrations Where the Lawyers Are Not Licensed ......................................................................... 131 i 35951124_10 UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses Hypo No. Subject Page Temporary Practice in Another State: Transactional Lawyers 12 Non-Litigation Work in Another State -- Definition of "Temporary" Presence ...................................................................................................... 142 13 Requirement of a Relationship with the Lawyer's Home State: Narrow View ................................................................................................ 148 14 Requirement of a Relationship with the Lawyer's Home State: State Variations ........................................................................................... 156 15 Requirement of a Relationship with the Lawyer's Home State: Broad View .................................................................................................. 172 16 Non-Litigation Work Without a Relationship with the Lawyer's Home State, but Based on Nationally-Uniform Law ................................ 176 Lawyers Moving Permanently to Another State 17 Lawyers Systematically and Continuously Practicing Law in a State Where They Are Not Licensed ......................................................... 182 18 Lawyers "Waiving in" to Another State's Bar .......................................... 197 19 Permissible Activities While Waiting to be Admitted by Motion in a New State .................................................................................................. 204 Effect of the Supremacy Clause on Lawyers Practicing Continuously in Another State Where They Are Not Licensed 20 Practicing Before Federal Agencies and Specialized Tribunals ............ 218 21 Practicing in Federal Courts ...................................................................... 225 22 Practicing "Federal" Law ........................................................................... 240 Serving as a Nonlawyer in Another State 23 Lawyers Acting as Paralegals in a State Where They Are Not Licensed ...................................................................................................... 258 ii 35951124_10 UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses Hypo No. Subject Page In-House Lawyers 24 In-House Lawyers Practicing in States Where They Are Not Licensed: General Rule ............................................................................. 262 25 In-House Lawyers Practicing in States Where They Are Not Licensed: Limitations ................................................................................ 273 Foreign Lawyers 26 Foreign Lawyers ......................................................................................... 283 iii 35951124_10 UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses Governmental Authority to Regulate Lawyers Hypothetical 1 You are interviewing for a law school professorship, and over lunch you and a current professor start discussing governmental power to regulate the legal profession. The professor claims that the federal government has the ultimate power to regulate the legal profession, because more than any other profession lawyers affect interstate commerce. You don't know whether to politely agree with the professor, or push back against what might be a deliberately incorrect view. Does the federal government have the ultimate power to regulate the legal profession? NO Analysis The constitution's Supremacy Clause1 allows federal law to essentially "trump" state law in certain matters. For instance, lawyers generally can rely on the Supremacy Clause to practice before certain federal agencies or specialized tribunals, even in states where the lawyers are not licensed to practice law.2 1 U.S. Const. art. VI, § 2. 2 Interestingly, courts have dealt with the effect of licences issued by other sovereigns – Native American Tribes. State of Arizona v. Lang, 323 P.3d 740, 742, 744, 745-46 (Ariz. Ct. App. 2014) (concluding that a lawyer was committing the unauthorized practice of law in Arizona even though he had been admitted to practice in a tribal court; affirming an injunction prohibiting the nonmember from practicing law in Arizona; "We hold that a person who presents himself as an attorney based in an Arizona office engages in the unauthorized practice of law unless he has been admitted to practice before the Arizona Supreme Court, even if he has been admitted to practice in a tribal court within the boundaries of Arizona."; "Lang holds a law degree and is admitted to practice law in the San Carlos Apache Tribal Court. He has never been admitted to the practice of law by the Arizona Supreme Court, and he is not a certified legal document preparer under section 7-208 of the Arizona Code of Judicial Administration."; "The Arizona Constitution gives our supreme court exclusive authority to regulate the practice of law in Arizona. The supreme court has disciplinary jurisdiction over individuals who are not members of the Arizona Bar but are licensed to practice law in a different state or possession [sic] of the United States and have engaged in the unauthorized practice of law in Arizona. The Bar is authorized to investigate, prosecute, and obtain enforceable judgments in the superior court against such individuals."; "That residents of other states were affected by Lang's representations and that other states also may have jurisdiction over his conduct does not deprive Arizona of jurisdiction."; "Likewise, even if Lang could have represented S.J. (former client) in the federal employment law matter, he committed the unauthorized practice of law by falsely representing that he was an attorney practicing in Arizona. He 1 35951124_10 UPL, MDP and MJP (Defining What Lawyers Do and McGuireWoods LLP Where They Can Do It): Part II T. Spahn (1/1/19) Hypotheticals and Analyses However, most regulation of the legal profession occurs at the state level. Lawyers receive their licenses from states, and can be professionally disciplined by whatever state has given them a license. This state-centric regulatory regime creates a number of complicating issues, including the issue of "multijurisdictional" practice. That term involves lawyers practicing law in states where they are not licensed to practice law. This is not to say that the federal constitution does not affect states' power over the legal profession.3 For instance, several states have dealt with constitutional challenges to their requirement that lawyers licensed in those states maintain a permanent office in the state. In 2010, a New Jersey legal ethics opinion addressed New Jersey's requirement that New Jersey lawyers can advertise in that state only